A recent Second Department decision applying the doctrine of laches highlights the importance of taking prompt action against a property owner who may be acting in violation of a zoning or building code.

The dispute in Kverel v. Silverman arose when the defendant contracted to purchase an undeveloped parcel of land (the “Premises”) in the Town of Southampton (the “Town”) from a non-party seller.  The plaintiffs owned the residence adjacent to the Premises.  After the defendant was issued a building permit for the construction of a single-family residence on the Premises, one of the plaintiffs filed an appeal with the Town’s Zoning Board of Appeals (the “ZBA”), alleging that the building plans violated the 32-foot and 2-story height limitations of Section 330-11 of the Town zoning code and that the proposed structure would interfere with his waterfront view.  The plaintiff later withdrew that appeal after the defendant amended his building permit and submitted revised building plans.  Nonetheless, it was evident that the plaintiffs still opposed the construction, despite the withdrawal of their appeal.

After the defendant purchased the property, but prior to the commencement of construction, he amended the building permit twice more, and then again about six months after construction began.  Thereafter, the plaintiffs sought to enjoin the defendant from proceeding with the construction on the grounds that the plans violated the Town zoning code.  The defendant cross-moved to dismiss.  The lower court granted the plaintiffs’ requested injunctive relief and denied the defendant’s cross-motion to dismiss.  The lower court also denied the defendant’s subsequent motion “to increase the amount of the undertaking posted by the plaintiffs” and his motion “for leave to renew his opposition to the plaintiffs’ motion for a preliminary injunction.”  The defendant appealed the lower court’s orders.

The well-established doctrine of laches is appropriate when a party demonstrates:

“‘(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that accorded the complainant’ (Stein v Doukas, 98 AD3d 1026, 1028, quoting Cohen v Krantz, 227 AD2d 581, 582; see Deutsche Bank Natl. Trust Co. v Joseph, 117 AD3d 982, 983).”

In reversing the lower court, the Second Department notes that in applying laches, courts must look to the effect of the delay and not only at the length of the delay.

In this case, construction had commenced and the defendant planned to sell the home that was to be built several months before the plaintiffs brought this action.  Instead of promptly pursuing an administrative appeal or taking other immediate legal action, the plaintiffs waited nearly three years after the defendant was initially issued the building permit, and more than six months after construction on the Premises began.  Furthermore, the Court points out that because the plaintiffs were aware of the potential Town code violations when they initially filed their ZBA appeal in July 2012—prior to the defendant’s purchase and at which time the Premises was still undeveloped—the subsequent amendments to the building permit were of little consequence.

Despite their opposition to the defendant’s proposed development from the very outset, the plaintiffs failed to fully pursue their administrative remedies or seek any injunctive relief until March 2015, when they commenced this action.  Because the defendant demonstrated that he would be significantly prejudiced by the plaintiffs’ unreasonable delay, for which they could offer no justification, the Second Department reversed the lower court’s rulings and held that the doctrine of laches barred the plaintiffs’ action.

It is important to act promptly when considering a challenge to development.  He who hesitates, loses.

The Hempstead Town Board recently approved a sweeping rezoning of portions of North Lawrence and Inwood that are designed to encourage mixed-use, commercial and transit-oriented developments.  This rezoning initiative, which was spearheaded by Hempstead Town Councilman Bruce Blakeman, hopes to transform derelict areas north of the Lawrence and Inwood Long Island Rail Road stations into walkable, affordable neighborhoods filled with hundreds of new apartments.

The new legislation, codified in Building Zone Ordinance (BZO) §§ 432, 433 and 434, creates three new zoning districts – a Transit Oriented Development (TOD) District, a Neighborhood Business (NB) Overlay District and a Residential Townhouse/Rowhouse (TR) Overlay District.  The vision behind each of these districts is to create vibrant hamlet centers, each with a distinctive sense of place.

Transit Oriented Development (TOD) District

The TOD District is divided into 10 sub-districts that cover over 20 acres of land north of the Lawrence and Inwood LIRR stations.  In creating a TOD District, the Town seeks to encourage a mix of building types and uses and diverse housing options that will create and sustain vibrant, attractive and economically flourishing hamlet areas in a portion of the town that is characterized by industrial and manufacturing uses.

The TOD District permits multi-family and mixed-use developments in buildings of up to five stories or 60 feet in height.  Developments within the district can have a residential density of up to 60 units per acre, and those containing at least five residential units must designate at least 20% of the units as “workforce housing.”  Workforce housing units in this district must be affordable to families earning no more than 60% of the Area Median Income (AMI) for the Nassau-Suffolk, NY HUD Metro FMR Area.  The rent for these units may not exceed 30% of the combined annual gross income of all persons living in the household.

In a slide presentation made by the Town’s planning consultant, it is projected that 336 new residential units and 19,500 square feet of retail and commercial space will be developed in the North Lawrence TOD District over the next three years.  In the Inwood TOD District, the three-year projection is for 232 new housing units and 5,000 square feet of retail and commercial space.

Neighborhood Business (NB) Overlay District

The NB Overlay District applies to about 19 acres located along Lawrence Avenue between Wasner Avenue and Mott Avenue in North Lawrence, and along Dougherty Boulevard between Bayview Avenue and Mott Avenue in Inwood.  Its goal is to create “main streets” along these roads by encouraging mixed-use developments that incorporate housing and commercial uses in a walkable environment.

The NB Overlay District permits multi-family and mixed-use developments in buildings of up to three stories or 35 feet in height.  The allowable residential density is up to 24 units per acre.  Buildings containing at least five residential units must designate at least 10% of the units as workforce housing that is affordable to families earning no more than 80% of the AMI.

Residential Townhouse/Rowhouse (TR) Overlay District

The TR Overlay District covers the largest area – about 33.7 acres of mostly residentially-zoned property located north of the railroad tracks and east and west of Nassau Expressway. The primary goal of this district is to implement planning and design guidelines that will provide a variety of new housing opportunities within existing neighborhoods to support a vibrant and sustainable residential community.

The permitted uses in the TR Overlay District are limited to single-family attached dwellings on lots of at least 15,000 square feet, and at a maximum density of up to 15 units per acre.  The allowable height in this district is up to three stories or 35 feet.  Buildings containing at least five residential units must designate at least 10% of the units as workforce housing that is affordable to families earning no more than 100% of the AMI.

Expedited Entitlement Process

Applicants proposing developments that comply with the applicable use and dimensional requirements in the three new districts will qualify for an expedited approval process that bypasses the Town’s site plan review process that is typically required prior to the issuance of a building permit.  Projects in the new districts are reviewed by a Town-appointed Design Review Committee (DRC) to ensure that they meet the applicable design guidelines and site requirements.  If the DRC determines that a submission is fully-compliant with the requirements, it will submit a written recommendation to the Department of Buildings indicating that the project is exempt from the site plan process.  Although projects must still be reviewed by the Town’s Engineering Department, Highway Department and Department of Conservation and Waterways prior to the issuance of a building permit, this expedited approval process is expected to reduce the time to obtain a building permit by several months or even years.

Given the proximity of these areas to the Lawrence and Inwood LIRR stations, the zoning changes recently adopted by the Town make perfect sense from a planning perspective.  Moreover, the expedited review process will undoubtedly be welcomed by developers who typically must endure a series of lengthy and burdensome entitlement processes before they can put a shovel in the ground.  The Town should be applauded for its vision and its efforts, but only time will tell if the new law is enough to incentivize private investment in these areas.

In Rimler v. City of New York, 2019 N.Y. Slip Op. 03599 (2d Dept, May 8, 2019), which involved a challenge to the issuance of a negative declaration, the Appellate Division, Second Department, affirmed a judgment of the Supreme Court, Kings County, granting respondents’ motion to dismiss the petition and denying the petitioners’ cross-motion to extend the time to serve process nunc pro tunc. The subject project (“Project”) involved a mixed-use development in downtown Brooklyn, i.e. the sale and redevelopment of a site at the intersection of Cadman Plaza West, Clinton Street and Tillary Street (“Site”). The City of New York (“City”) owned the Site, which previously contained a two-story branch of the Brooklyn Public Library (“Library”). The Project required the demolition of the Library building, followed by the construction of a 36-story building with below-ground parking, a new Library branch, a small amount of retail space and apartments.

The City Mayor’s Office of Sustainability (“MOS”) was designated the lead agency for environmental review under the State Environmental Quality Review Act and the Rules of the City governing City Environmental Quality Review. Following the MOS’s preparation of an environmental assessment, MOS issued a negative declaration on June 12, 2015, which determined that the project would not have a significant adverse impact on the environment and that an environmental impact statement was not required. In addition, the Brooklyn Public Library, the City Department of Citywide Administration and the developer, Cadman Associates, LLC, applied to the City Planning Commission for approval of the Project because it involved the sale of City-owned land and was, therefore, subject to the City’s Uniform Land Use Review Procedure. After public hearings, the City Planning Commission approved the Project on November 2, 2015. Thereafter, the City Council held a public hearing and, ultimately, approved the Project on December 16, 2015.

The petitioners commenced their Article 78 proceeding challenging the City’s negative declaration by filing their petition on April 15, 2016, and served the petition upon the respondents between May 13 and May 23, 2016. The respondents moved to dismiss the petition on the ground that the petition was untimely served. The petitioners cross-moved, pursuant to CPLR Section 306-b, for an extension of time, nunc pro tunc, to serve the petition to the dates it was served. The Supreme Court denied petitioner’s motion to extend time to serve, granted respondents’ motion to dismiss, and held that the petition should also be denied on the merits. The petitioners appealed and the Appellate Division affirmed.

Although the petitioners timely commenced their challenge within the four-month statute of limitations, by filing on April 15, 2016, when the statute expired on April 16, 2016,[1] the petitioners failed to timely serve their petition. Ordinarily, pleadings must be served within 120 days after the filing thereof; however, CPLR Section 306-b requires that where the applicable statute of limitations is four months or less, service of the pleadings shall be made no later than 15 days after the expiration of the state of limitations. Here, the statute expired in mid-April, the time within which to serve the petitioner expired 15 days later – in early May, and the petitioners did not serve their petition until the end of May.[2]

While CPLR Section 306-b does allow for an extension of the time to serve, the Supreme Court and the Appellate Division held that the petitioners did not meet their burden to earn an extension. Courts, within their discretion, may give an extension “upon good cause shown or in the interest of justice.” The Appellate Division noted that where a party fails to attempt timely service, good cause cannot exist. Because there was no evidence in the record that the petitioners even attempted service prior to the expiration of the 15 days, good cause did not exist to justify the extension.

Additionally, the Court discussed other considerations in deciding whether to grant the extension. Even though a party need not establish reasonably diligent efforts at service, Courts may consider diligence generally – or lack thereof – together with other relevant factors, including expiration of the statute of limitations, meritorious nature of the claims, length of delay in service, promptness of the request for an extension and prejudice to the opposing party. The Appellate Division agreed with the Supreme Court that the petitioners also failed to proffer meritorious claims in their petition, and that the MOS fulfilled its review obligations.

This decision is a reminder that an Article 78 petitioner must not only be mindful of the statute of limitations, but must also be aware of the timely service requirements of CPLR 306-b.

[1] April 16, 2016, was a Saturday, and so the statute of limitations technically extended through to Monday, April 18, 2019. See N.Y. Gen. Constr. Law § 25-a(1) (“Where any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or public holiday, such act may be done on the next succeeding business day . . . .”).

[2] The technical expiration date is disputable. See supra note 1.

A recent case from the Appellate Division, Second Department, addresses one of our favorite topics, standing. It is a cautionary tale about how not to establish standing.

Tilcon New York, Inc. v Town of New Windsor involved a hybrid proceeding in which the plaintiff/petitioner asserted nine separate causes of action. The appellate court determined that plaintiff/petitioner lacked standing on each of the causes of action, resulting in the dismissal of the petition/complaint.

The case stems from a 2013 lease between Jointa Lime Company (Jointa) and the Town of New Windsor (Town) for Town-owned property. The lease expired in April 2016. Prior to the lease expiring, Jointa requested that it become a month-to-month tenant and the Town agreed, with the proviso that the Town could terminate the tenancy on 30-days’ notice. Jointa remained in possession after April 2016 and the Town continued to accept the monthly rent payments.

In May 2016, Tilcon New York, Inc. (Tilcon) commenced the hybrid proceeding. Tilcon is a business competitor of Jointa. Tilcon claimed that the month-to-month holdover tenancy violated Town Law §§ 29(11) and 64(2), General Municipal Law (GML) §§ 51 and 103 and the State Environmental Quality Review Act (SEQRA).

On appeal, the Appellate Division determined that Tilcon lacked standing on all of its asserted claims. First, the appellate court explained that standing requirements “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case” and that “each element must be supported in the same way as any other matter on which the plaintiff bears the burden.” The appellate court further noted that in order to sustain a challenge to a governmental action, a plaintiff/petitioner must show “it will suffer direct harm, injury that is in some way different from that of the public at large,” and that the alleged in-fact injury “falls within the zone of interests, or concerns, sought to be promoted or protected by the statutory provisions under which the agency has acted.” The appellate court also noted that “a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue” even if the “issue may be one of vital public concern.”

With these principles in mind, the appellate court then turned to the myriad of causes of action asserted by Tilcon against the Town.

Tilcon claimed that the Town violated Town Law §§ 29(11) and 64(2) by failing to comply with statutory requirements applicable to leasing. The appellate court found that Tilcon “failed to describe any injury to itself, either actual or potential, that has resulted from these alleged violations, much less an injury different from the general injury to the public at large that results from the Town’s alleged violation of the procedural requirements for leasing real property.” The court further noted that Tilcon, at best, may have suffered increased business competition, which the court found was insufficient to support standing.

The appellate court next dealt with the claims asserted against the Town Zoning Board of Appeals (ZBA). The appellate court noted that Tilcon was not a party to those proceedings and the decision was not adverse to Tilcon. As a result, the court found that Tilcon lacked standing for the claim asserted against the ZBA because “Tilcon failed to demonstrate it suffered an injury-in-fact distinct from the public at large.”

The appellate court next turned it focus to the claims made under SEQRA. It noted that “a generalized interest in the environment” was insufficient to establish standing under SEQRA. Similarly, the court found that Tilcon only alleged economic injury, and did not allege any environmental injury that was different from the public at large. As a result, Tilcon lacked standing to assert claims under SEQRA.

The appellate court also rejected Tilcon’s GML § 51 challenge. Tilcon was found not to have standing under that section, which “authorizes taxpayer suits to prevent waste, collusion, fraud, or other illegal acts” because Tilcon failed to include any such allegations. Rather, at most, the court noted that Tilcon may have alleged a failure to follow statutory procedure, which “does not constitute the fraud or illegality necessary to support a taxpayer action pursuant to section 51.”

Finally, the appellate court rejected Tilcon’s claims for common-law taxpayer standing. That type of claim is reserved for challenges to “important governmental actions” where “the failure to accord such standing would be in effect…an impenetrable barrier to any judicial scrutiny of legislative action.” Here, the month-to-month holdover lease was found not to be of “appreciable public significance beyond the immediately affected parties.”

This case makes it abundantly clear that standing is an essential element of challenges to municipal determinations. A petitioners needs to show more than dissatisfaction with the municipal decision. It has to explain in detail how it is injured, how its injury is different from the public at large and how it falls within the zone of interests sought to be protected by the statute under which the municipality acted. Failure to make this factual showing will doom a challenge on standing grounds.

 


Here’s one for the history buffs! A quiet feud between the State of New York and the Town of Oyster Bay over the Town’s underwater boundary has been resolved (for now) in Murphy v. Town of Oyster Bay, — N.Y.S.3d —-, 2019 WL 1646259 (N.Y.A.D. 2 Dept.), 2019 N.Y. Slip Op. 02887.

On January 1, 2010, the Plaintiff, Brian Murphy, was harvesting shellfish in waters near the maritime border between the Long Island Sound and the waters of Oyster Bay. At the time, Mr. Murphy possessed a license from the State of New York granting him permission to harvest shellfish from marine waters of the State.

Unbeknownst to Mr. Murphy, the State and the Town of Oyster Bay have disagreed on the precise locations of the lines separating the underwater lands belonging to the Town from the portions of the Long Island Sound that are owned by the State of New York. On January 1st, Town of Oyster Bay officials discovered Mr. Murphy in the midst of his harvesting and promptly issued him a citation for shellfishing without a Town permit. Mr. Murphy received a second citation from the Town two months later.

In August, 2010, Mr. Murphy filed a declaratory judgment action seeking a judicial decree that the Town’s citations against him were invalid because he was lawfully shellfishing in the Long Island Sound. The Town and the State were both named as defendants.

In its defense, the Town evoked the 1677 patent issued by Edmond Andros, Governor General under James Duke of York, which established the general description of the boundaries of the Town of Oyster Bay (the “Andros Patent”). Citing the Andros Patent, the Town claimed title to all underwater lands south of a line drawn between Oak Neck Point in Oyster Bay and Lloyd Point on Lloyd’s Neck in Huntington. In response, the State claimed that the Town boundary lay farther to the south on a line drawn between Rocky Point in Oyster Bay and Whitewood Point on Lloyd’s Neck in Huntington. There was no dispute among the parties that Mr. Murphy was harvesting shellfish in the area between these two imaginary lines.

The Town and the State each filed motions for summary judgment based upon documentary evidence, including the Andros Patent, and governing principles of maritime and international law, and federal versus state sovereignty. The trial court (Hon. Stephen A. Bucaria, J.) ruled for the State. See Murphy v. The Town of Oyster Bay, Short Form Order, Sup. Ct. Nassau Co. Index No. 00624/12, Motion Seq. #002, 003, 004 (Jan. 12, 2016).

The lower court observed that while the Andros Patent describes the Town’s northern boundary as the Long Island Sound it never “expressly define[d] the boundary between the Sound and the Bay.” Consequently, the precise location of the Town’s northern maritime border was left unresolved. Id. at p. 3.

The lower court’s opinion touches upon several interesting concepts which deserve a full read of the written decision. For purposes of this post, the Court’s holding provides sufficient explanation. Judge Bucaria wrote:

Under New York State law, crown patents, as distinguished from Royal Colonial Charters, are to be strictly construed in favor of the sovereign, and against the patentee. Similarly, under federal law, states enjoy a presumption of title to submerged lands beneath inland navigable waters within their boundaries. Since New York State has a presumption of title to submerged lands, the burden of proof … is on the Town.

Neither the State nor the Town offers any documents contemporaneous with the Andros Patent, specifying the extent of the underwater land which Andros intended to convey. Thus, the boundary between the Sound and the Bay must be determined not by reference to principles of international law, or the Town’s history of control, but by the nature and situation of the land and the circumstances surrounding the Andros patent. … As early as Rogers v Jones, supra, in 1828, it was assumed by New York’s highest court that the boundary between Oyster Bay and Long Island Sound was around Lloyd’s Neck. Based upon the nautical charts … submitted to the court, as well as the limitations upon Andros’ authority to grant sovereign status, the State has established prima facie that the boundary between the Bay and the Sound is the line connecting Rocky Point to Whitewood Point on Lloyd’s Neck. In view of the Town’s failure to offer evidence that Andros intended another boundary line, the court must render judgment for the State.

Murphy v. The Town of Oyster Bay (Bucaria, J.), supra, at pp. 5-6 (internal citations omitted).

On appeal, the Second Department affirmed Judge Bucaria’s decision. Finding that the Andros Patent is indeed ambiguous with respect to the precise dividing line between the Sound and the Bay, the Court resorted to the extrinsic evidence presented in the record. The Court opined:

The record in this case demonstrates that the State’s proposed boundary line is the only fair interpretation of the Andros Patent. Here … the record contains no factual matter that might support a different conclusion. For example, the parties submitted no evidence showing some different historical understanding of Oyster Bay or bays more generally, or personal accounts of mariners or other witnesses that, if credited, might support the Town’s proposed headlands. The record that the parties opted to compile in this case simply does not permit more than one inference as to the appropriate boundary line. Thus … the Supreme Court appropriately resolved the dispute as a matter of law, and we agree with the court’s declaration that the boundary line between Oyster Bay and Long Island Sound is the line running east from Rocky Point in Oyster Bay to Whitewood Point on Lloyd’s Neck, and that the State owns all of the underwater lands north of that line.

Murphy v. Town of Oyster Bay, et al., 2019 WL 1646259 at *2.

The development in Murphy is an interesting one, as is the unassuming circumstances from which the litigation arose. But whether the courts’ decision will last is yet to be determined. The Town may yet seek to appeal the Appellate Division’s decision. Alternatively, it could petition the State legislature to change the location of the boundary set by the courts. The battle for the bay may not be done.

Copies of the decisions can be accessed free of charge on the Appellate Division, Second Department website, http://www.courts.state.ny.us/courts/ad2/handdowns.shtml, and the New York State Unified Court System website, https://iapps.courts.state.ny.us/webcivil/FCASSearch (Index Search: 00624/2012).

The Appellate Division, Second Department, in Chestnut Ridge Associates, LLC v 30 Sephar Lane, Inc. 169 A.D.3d 995, 2019 N.Y. Slip Op. 01388 [2d Dept 2019], modified a decision of the Supreme Court, Rockland County, which, inter alia, annulled a determination of the Village of Chestnut Ridge (“Chestnut Ridge”) Zoning Board of Appeals (“Chestnut Ridge ZBA”) and awarded costs and attorneys’ fees for violations of New York’s Open Meetings Law. The appeals court affirmed the trial court’s finding that the Chestnut Ridge ZBA’s determination should be annulled because it was without jurisdiction to consider whether a use variance is required; however, the appeals court reversed the trial court’s decision to award costs and attorneys’ fees for a violation of New York’s Open Meetings Law because an improperly noticed meeting was open to the public and the ultimate determination was adopted at a publicized, public meeting.

The facts of this case, set forth in great detail by the trial court, are quite provocative. In 2007, Steve’s Lawn, Inc. and 30 Sephar Lane Corp. (collectively, “Steve’s”) purchased the subject property (“Property”), which hosts a landscaping business. The Property is zoned within the LO (Laboratory-Office) District, the use provisions for which have been interpreted to permit landscaping businesses (i.e. landscaping storage as an accessory use to an office). Notably, more than a dozen landscaping businesses operate within this district and without municipal interference.

Directly across the street, Chestnut Ridge Associates, LLC (“Associates”) owns a largely vacant 14.6-acre parcel. Associates has been unsuccessfully seeking to develop its parcel for more than two decades, and invested $90,000,000 towards these efforts. Apparently, Associates either wanted the Property or wanted Steve’s to stop operating its landscaping business thereon because it interfered with Associate’s development plans. In early 2008, Associates pressured the Chestnut Ridge Mayor (“Mayor”) to shut down Steve’s business, and the Village Board of Trustees (“Trustees”) ordered the Code Enforcement Officer (“Officer”) to issue an appearance ticket to Steve’s for operating without site plan approval.

The Officer issued the ticket under protest, informing the Mayor and the Trustees that it was his opinion that landscaping operation is a permitted use within the LO District and upon the Property. The Officer withdrew the ticket prior to disposition. During the pendency thereof, nevertheless, Steve’s submitted an application to the Chestnut Ridge Planning Board for, among other things, construction of a storage structure. In October 2009, the Chestnut Ridge Planning Board concluded that Steve’s application might need an area variance – but it would not need a use variance for the landscaping business. Steve’s submitted an application to the Chestnut Ridge Zoning Board of Appeals (“Chestnut Ridge ZBA”) for an area variance concerning setbacks for the new structure.

After Steve’s submitted its site plan application and around the time Steve’s submitted the area variance application to the Chestnut Ridge ZBA, the Trustees enacted a local law expressly making landscaping a permitted use within the LO District. However, seemingly as a result of Associates’ input, the local law also provided it did not apply to properties that were the subject of applications filed with the Chestnut Ridge Planning Board prior to its enactment. The trial court noted that it was clear this local law applied only to the Property and “was enacted for no other reason than to benefit [Associates] at Steve’s expense.

Moreover, based upon Associates’ opposition to Steve’s area variance application, the Chestnut Ridge ZBA sought to determine whether the landscaping use is permitted. In September 2011, Steve’s counsel served a Notice of Claim upon the Chestnut Ridge ZBA in connection therewith, and requested to withdraw the area variance application. The Chestnut Ridge ZBA refused and demanded that Steve’s address the issue of their jurisdiction to consider the use issue. Steve’s neither responded nor made further appearances.

Associates, then, requested that the Chestnut Ridge ZBA interpret whether Steve’s landscaping storage is a permitted use. The Chestnut Ridge ZBA obliged, held at least one meeting not open to the public (and without entering executive session) in order to secretly discuss Associates’ request,[1] and hosted a public hearing on the issue. In January 2012, the  Chestnut Ridge ZBA issued a resolution that the local law did not apply to the Property and that Steve’s landscaping storage is not a permitted use. Thereafter, Steve’s commenced a hybrid action/proceeding to, among other things, annul the Chestnut Ridge ZBA’s determination.[2]

In Steve’s hybrid case, the trial granted Steve’s petition and annulled the Chestnut Ridge ZBA’s determination on grounds that it is jurisdictionally defective: “ZBA’s have only appellate jurisdiction . . . Here, Steve’s invoked the jurisdiction of the [Chestnut Ridge ZBA] by filing its area variance application. It then withdrew it. The [Chestnut Ridge ZBA] purported to disregard the withdrawal. Other than evidencing [their] bad faith, such refusal had no legal effect.” Moreover, neither Chestnut Ridge nor Associates cite any authority to compel Steve’s to pursue an area variance it no longer desired. When Associates filed its interpretation request, there was nothing for the Chestnut Ridge ZBA to review. Even assuming Steve’s did not withdraw its area variance application, the result would not change because Steve’s – the applicant – sought an area variance; the issue of its use was never before the Chestnut Ridge ZBA, and Associates did not seek to appeal from any pending determination regarding Steve’s use.

The trial court also annulled the Chestnut Ridge ZBA’s determination for violations of the Open Meetings Law, where the board held at least one meeting which was not open to the public and during which the board discussed Associates’ request for a use interpretation concerning Steve’s landscaping business at the Property. The trial court also noted the Chestnut Ridge ZBA’s bad faith: “[H]aving decided to put Steve’s out of business at [Associates’] behest, it is not surprising that [the Chestnut Ridge ZBA] did not want to discuss the same before the public.”

On appeal, the Appellate Division affirmed the annulment of the Chestnut Ridge ZBA’s decision, based upon its non-jurisdiction. Without a determination from the building inspector or other administrative official charged with enforcement of the zoning code, zoning boards are without jurisdiction to consider an application for an interpretation of the code. In addition, although the Appellate Division also found that the record supported a finding that the Chestnut Ridge ZBA violated the Open Meetings Law by hosting a workshop without giving notice of the meeting, Steve’s did not establish good cause to annul the Chestnut Ridge ZBA’s determination on that ground. While improperly noticed, the meeting was open to the public and the determination was adopted at a publicized public meeting and was the subject of a number of prior public meetings.

[1] There is some discrepancy about this meeting; the trial court found it was held in secret, but the appeals court found  that the meeting only improperly noticed and actually open to the public.

[2] In 2010, Associates commenced a separate action seeking a permanent injunction against Steve’s operation of its landscaping business at the Property.

In the Matter of Strandkorb, LLC v. Zoning Board of Appeals of the Town of East Hampton, dated February 11, 2019, the Supreme Court, Suffolk County, upheld the Town of East Hampton Zoning Board of Appeals determination which denied the petitioner’s request to construct a new two story residence with a garage, pool, patio decking, walkways and an upgraded septic system.

The subject property, located at 67 Shore Road in Amagansett, is across the street from properties abutting the Atlantic Ocean, and has protected dune land and beach vegetation on the western part of the site. As part of the Subdivision Map of Montauk-On-Sea Lots filed in 1955, the property is only 15,104 square feet in size, pre-exists the B Residential Zoning district in which it lies (the original house also pre-existed zoning) and is an undersized lot. Any disturbance of dune land or beach vegetation requires a Natural Resources Special Permit (“NRSP”) from the Zoning Board of Appeals. The proposed ZBA application sought to demolish the existing 2,600 square foot residence and construct a 3,075 square foot two story residence with a 589 square foot garage, 315 square foot pool and 998 square feet of patio, decking and walkways. The ZBA application sought a NRSP pursuant to Town Code §255-4-20 however, no variances from the Town’s Zoning Code were required in connection with the proposed development. Even though the ZBA noted that “it appears that the applicant has made an effort to design the project so as to minimize the disturbance in the western portion of the property which contains the beach vegetation and dune land habitat characteristics,” the ZBA ultimately denied the application. The ZBA relied upon the Planning Department’s finding that the project constituted an aggressive redevelopment of an environmentally sensitive property and found that the lot area was not “sufficient, appropriate or adequate for the proposed improvements” given that (i) the total lot coverage would increase from 22% to 35%, (ii) the proposed gross floor area of the home was 3,075 square feet where 3,110 square feet is permitted, and (iii) the building coverage would be doubled and only 5 square feet under the maximum allowed. The Board further found that the “overdevelopment of the property is not consistent with the surrounding properties, which are all substandard as to lot size and contain dune land habitat.” The Board also noted that “the surrounding properties consist of mostly soft scape, while the applicant here is proposing mainly hardscape (referring to the proposed decking, walkways and patio).” In response, applicant filed an Article 78 proceeding challenging the Zoning Board’s denial.

The court upheld the Zoning Board of Appeals determination, noting that local zoning board determinations are entitled to “great deference” and will only be set aside by a court if it is illegal, arbitrary and capricious or irrational. Petitioner argued that since the proposed development complied with the dimensions of the zoning code and minimized environmental impacts, the ZBA determination was arbitrary and capricious. However, the court noted that the ZBA found the application did not comply with the NRSP standards set forth in the Town Code. Specifically, the court noted that the proposed application would not maintain the character of the neighborhood or contribute to the orderly growth of the area concluding that the accessory structures would negatively impact the natural features on the lot. Moreover, the court referred to the zoning board’s finding that alternative designs to limit the proposed hard surfaces would lessen potential detrimental impacts to the property. Thus, the court found sufficient evidence in the Zoning Board’s record denying the application and held that the decision had a rational basis and was not arbitrary and capricious. Accordingly, the petition was denied and the Article 78 proceeding was dismissed.

 

Builders, developers and property owners are often cited for zoning violations that become the subject of criminal enforcement proceedings in court (i.e. appearance tickets).  Certainly, a party can have the court decide the matter, however, an appeal to a Board of Zoning Appeals can be used to stay any and all court enforcement proceedings.  This can be a particularly useful tool, when a property owner or developer is cited for zoning code violations that may shut down activities and force a timely and protracted court battle.

In fact, New York Town Law Section 267-a(6) provides a clear path for a stay to have zoning issues resolved before local zoning boards rather than in a judicial proceeding.  N.Y. Town Law Section 267-a(6) and its correlating village and city law sections provide as follows:

6. Stay upon appeal.  An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the board of appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay, would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown (emphasis added).

In People v. Bell, 183 Misc.2d 61 (Justice Ct., Village of Tuckahoe 2000), the Village building inspector issued appearance tickets returnable in the Village’s Justice Court for (1) no certificate of occupancy, (2) change of use of land without obtaining a certificate of occupancy, (3) no site plan approval, and (4) no screening of activities.  A jury trial was scheduled for September 28, 1999.  On September 27, 1999, Bell Atlantic appealed the subject matter of the appearance tickets to the Zoning Board and claimed a stay under section 7-712-a(6) of Village Law (the correlating provision of Village Law regarding stays).  The appeal by Bell Atlantic sought, among other things, to “overturn decision of the Village of Tuckahoe Building Inspector that the present use of the premises is a change of use that requires site plan approval and a certificate of occupancy for the premises.”

In Bell, the Village did not question Bell Atlantic’s ability to appeal the building department’s determination to the Board of Zoning Appeals, but challenged the stay of criminal proceedings in the Village Justice Court.  In upholding the stay, the court rejected the Village’s position as exalting form over substance.  The Court reasoned that the statute mandates a stay when the issue before the court and the Board of Zoning Appeals are the same, because the purpose of the statute is to obtain a definitive ruling from the Zoning Board of Appeals before making a judicial determination.  This avoids conflicting rulings from a judicial determination and the Board of Zoning Appeals.  The fact that the appeal did not originate with a denial of an application or notice of violation is immaterial.  Id.

Based on Bell, it appears that any action or decision of the building department, even a criminal enforcement proceeding, is automatically stayed by appealing such action to the Zoning Board of Appeals, as a matter of law.  This can be a powerful tools, when a property owner is faced with a potential court proceeding for zoning violations.  This ability to “stop the clock” may in turn provide an ability to negotiate a practical solution.

It must be noted that appeals of decision by a zoning enforcement officer cannot be neglected.  Such an appeal must be taken within sixty days after the filing of any order, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal.  See, Town Law Section 267-a(5)(b).

In Matter of Sagaponack Ventures, LLC v Bd. of Trustees of the Vil. of Sagaponack, the Second Department upheld the denial of an Article 78 proceeding seeking to vacate and annul a determination of the Board of Trustees of the Village of Sagaponack (the “Board”).  In its determination, the Board denied the site plan application submitted by Sagaponack Ventures, LLC (the “Petitioner” or “Applicant”), which sought to develop a 13,780-square foot single-family residence on the northwest corner of its 43.5-acre oceanfront property (the “Property”) located in the Village of Sagaponack (the “Village”).  Because it is located within the Village’s Agricultural Overlay District, the Property is subject to certain development guidelines set forth in the Sagaponack Village Code (the “Code”), which must be considered by the Board in rendering a determination.  Section 245-67(M) of the Code provides the following:

Agricultural Overlay District.  In considering site plan applications for all buildings or other structures that are to be situated on a lot equal to or greater than five acres and located within the Agricultural Overlay District, the Planning Board shall use the following factors to determine the most suitable location of the buildings or other structures for the current and future development of the property and the most suitable area for future farmland preservation:

(1)  Development areas shall be located on the portion of the lot where impacts on the loss of prime agricultural soils are minimized.

(2)  Development areas shall be located on the portion of the lot where impacts on views and vistas of the farmland areas from public rights-of-way are minimized.

(3)  Farmland areas shall be located on the portion of the lot to encourage continuity of farmland and farming operations on the lot and adjoining properties.

(4)  Development and farmland areas shall be located to minimize impacts on the future subdivision of the lot in accordance with open space requirements.

In its decision, the Board assessed each of those four factors.

With respect to the first factor, the Board noted that all of the 43.5 acres of the Property is comprised of “prime agricultural soils.”  However, the Board gave considerable weight to the fact that the southern portion of the Property was disturbed in 2007, when topsoil was removed and the area was filled, resulting in a change in elevation.  Furthermore, the fact that the Applicant did not permit a soil scientist to inspect the Property at the Village’s expense did not sit well with the Board.  One thing was clear to the Board—development on the portion of the Property requested by the Applicant would undoubtedly have a significant impact on the loss of prime agricultural soils, and would reduce the amount of farmable land on the Property.

With respect to the second factor, the Board found that the application as submitted would significantly impact views and vistas of the remaining farmland on the Property from public rights-of-way.  The southern portion of the Property is on the ocean, whereas the northern portion of the Property is adjacent to a public highway.  Thus, the Board found that the public’s views and vistas of the farmland would be minimized if development were to occur on the southernmost portion of the Property, rather than on the northwest corner.

The third factor was not much of a concern to the Board because no portion of the Property, nor the land adjacent to the Property, has been farmed over the past several years.

Lastly, in considering the fourth factor, the Board determined that development on the northwest corner of the Property would impact any future subdivision of the Property because the parcel would not conform to the applicable open space requirements upon the subdivision.

Based on its assessment of the four factors in Code Section 245-67(M), the Board ultimately determined that the northwest corner of the Property was not “the most suitable location” for the development of the Petitioner’s proposed single-family residence.  Despite the Petitioner’s contrary contentions, the Second Department upheld the trial court’s determination that the Board’s findings were rationally based and a valid exercise of the Board’s broad discretion.

As a final takeaway, this case emphasizes the importance of those seeking to develop their property to be aware of restrictions or unique guidelines in their local code, which may affect their development rights depending on their property’s characterization or location.

A Town of East Hampton resident can continue to operate a home-based dog-walking and pet sitting business after the East Hampton Zoning Board of Appeals voted unanimously to overturn a previous determination by the Town’s Building Inspector, who concluded that the business use was not a “home occupation” as defined in the East Hampton Town Code.

For more than a decade, Lori Marsden and her husband operated a dog-walking and pet sitting business known as Lori’s Pet Care out of their single-family residence.  Their services include pet care such as feedings and administering medication for all types of pets, as well as walking dogs. The business also offers daily dog day care and pet sitting services, and accommodates overnight stays when pet owners leave town.

In July 2017, a Town Code Enforcement Officer issued violations to Marsden for operating the business out of her house, which is located within a residential zone within the Town.  While her enforcement action was pending in the Town’s Justice Court, Marsden’s attorney sought a determination from the Building Inspector that the dog-walking and pet sitting service was a lawful home occupation business under the Town Code.

Section 255-1-20 of the East Hampton Town Code permits residents to operate businesses out of their home as long as they do not exceed 25 percent of the gross floor area or 500 square feet, whichever is less; that the business be conducted solely by those occupying the dwelling, except for one additional employee; and that there be no external evidence of the business, such as noise.

The Building Inspector determined that the use did not qualify as a home occupation pursuant to the Town Code based on her finding that the business produces external evidence of the business at times when the dogs are taken out of the residence during walks, playtime or to relieve themselves.  The Zoning Board disagreed.

In its March 19, 2019 Determination, the Zoning Board determined that Marsden’s pet sitting business met the Town Code definition of home occupation for several reasons.  Specifically, the Board found it compelling that the use does not change the character of the neighborhood and is secondary to the residential use of the property.  Moreover, the Board found that the record did not support the Building Inspector’s finding that the use created external evidence of the business operation.  Indeed, a member of the Board noted that there were no kennels outside or other evidence of the dogs.  Finally, the Board noted that the Town Code expressly excludes a “breeding kennel” from its definition of home occupation, but not a “boarding kennel.”

The Zoning Board was not persuaded by a video depicting barking dogs that was submitted by a neighbor at the January 29, 2019 pubic hearing.  Instead, it noted that it cannot be determined from the video whether the dogs barking are Marsden’s own dogs or dogs she is pet sitting for or even if they are dogs are on Marsden’s property.  After noting that Marsden has two dogs of her own, the Board concluded that there was “no evidence that the activities by dogs from the pet sitting business can be distinguished from the use of the residence by [Marsden’s] own dogs.”

The Zoning Board’s determination is a victory for Marsden, and allows her to operate Lori’s Pet Care from her home provided the requisites of Town Code § 255-1-20 are met.  However, there are some who believe that the East Hampton Town Board should update the home occupation definition specifically as it relates to dog care.  Citing the necessity for dog day care to some pet owners, Zoning Board member Tim Brenneman stated during one of the meetings that “the issue of pet care dog care is worthy of a more detailed definition that better considers the needs of the community.”